Under California law, powers of attorney grant an agent with authority to act on someone else’s behalf, but this authority is not absolute. When disputes arise over an agent’s representation under a power of attorney, it may be necessary to override the power of attorney. Understanding what a power of attorney is, how they work, who can intervene and when is crucial to protecting yourself and your loved ones.
What is a Power of Attorney?
A power of attorney is a written instrument authorizing an agent to perform certain, specified acts on behalf of the party executing the writing. (Prob. Code, § 4022.) In this context, the agent is the attorney-in-fact and the party executing the writing is the principal. (Prob. Code, § 4014 subd. (a).)
There are several different types of powers of attorney; each of which has its own distinct purpose and features. Regardless of the type, powers of attorney are strictly construed. As such, no power of attorney authorizes an agent to act beyond the scope of its terms, nor as the principal’s attorney at law.
Durable & Non-Durable Powers of Attorney
A durable power of attorney remains valid even if the principal becomes incapacitated, unless expressly revoked. (Prob. Code, § 4050.) Durable powers of attorney are particularly useful for long-term planning because they allow principals to avoid court-supervised conservatorship if they become incapacitated. To create a durable power of attorney, the written authorization must include a statement indicating the principal’s desire for the agent’s authority to continue despite incapacity. (Prob. Code, § 4125.)
In comparison, the principal’s incapacity automatically terminates nondurable powers of attorney. Specifically, a non-durable power of attorney grants an agent authority to act on the principal’s behalf but lacks the language necessary to establish the power of attorney’s continued validity upon the principal’s death or incapacity. (Prob. Code, § 4022.)
Springing Powers of Attorney
An agent’s authority under a springing power of attorney does not become effective immediately. Instead, a springing power of attorney becomes effective at a future time or upon the occurrence of an event as specified in the writing’s terms. (Prob. Code, § 4030.) A springing power of attorney can be durable or non-durable, meaning they are not guaranteed to be enforceable when the principal becomes incapacitated. (Id.)
A common example of springing powers of attorney are healthcare powers of attorney. By law, health care powers of attorney do not authorize an agent to act on the principal’s behalf until the principal is determined to be incapacitated. (Prob. Code, § 4682.) Therefore, unless the principal explicitly stated otherwise in the health care power of attorney, an agent will not immediately have authority to act. (Id.)
Revoking a Power of Attorney
Principals with the proper mental capacity, can revoke their power of attorney either (1) according to its written terms; or (2) by a new writing. (Prob. Code, § 4151; Todd v. Superior Court of California in and for City and County of San Francisco (1919) 181 Cal. 406, 417.) Accordingly, a principal who lacks capacity, or is otherwise incapacitated, cannot revoke their power of attorney. In these circumstances, a third-party with a valid legal reason must petition the court to override the power of attorney.
Who can override a Power of Attorney?
California Probate Code section 4540 establishes who may petition the court to override a power of attorney under the right circumstances. This list includes: (1) the principal’s agent; (2) the principal; (3) the principal’s spouse; (4) the principal’s relative; (5) conservators of the principal or their estate; (6) a court investigator; (7) a public guardian; (8) a personal representative or trustee; (9) a person who the agent asks, in writing, to file a petition; and (10) any interested person or friend.
For purposes of this discussion, this list has been grouped into four categories: (1) conservators and personal representatives; (2) friends; (3) family members; and (4) mandated reporters.
Conservators & Personal Representatives
A conservator is an individual the court appoints to assist incapacitated principals with management of their personal and/or financial affairs. (Prob. Code, § 1801.) The court may even appoint a conservator upon the principal’s own request and a proper supporting demonstration of good cause. (Prob. Code, § 1802.)
Similarly, a personal representative has broad authority to manage and administer the principal’s estate once they are deceased. Typically, personal representatives are appointed in the principal’s estate plan and are authorized to administer and protect the estate. (see Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331; Prob. Code, § 4236).
In the context of powers of attorney, if the court appoints a conservator or personal representative of the principal’s estate, the appointed individual has authority to revoke or amend a durable power of attorney. (Prob. Code, § 4206.) However, revocation or amendment cannot be sought, by a conservator or personal representative, without Court approval. (Id.) The court must issue an order authorizing or requiring the representative to modify or revoke the power of attorney, and all modifications must align with the court’s order. (Id.)
A conservator or personal representative might seek a court order to override a principal’s power of attorney when they determine overriding the power of attorney is necessary to protect the principal’s best interests. California Probate Court allows conservators to override their principal’s power of attorney when the court finds that the principal is incapacitated and either unable to resist fraud or undue influence or manage their financial resources. (Conservatorship of Ramirez (2001) 90 Cal.App.4th 390, 401-402.)
Friends
Depending on the nature of their relationship with the principal, friends may have standing to challenge an existing power of attorney. (Prob. Code, § 4540.) A friend’s ability to override a power of attorney will ultimately depend on the court’s interpretation of their relationship with the principal. For example, the court will not consider neighbor who has only met the principal once a friend for the purposes of overriding a power of attorney. (Conservatorship of Anne S. (2025) 112 Cal.App.5th 1021, 1030-1031.)
Thus, friends must demonstrate a direct and substantial interest in the principal’s welfare to override a valid power of attorney; however, the power of attorney may, by its terms, limit a friend’s ability to do so. (Prob. Code, § 4503.)
Family Members
Generally, family members cannot override a valid power of attorney unless they discover evidence of undue influence, fraud, or the principal’s lack of capacity at the time they executed the power of attorney. Accordingly, under Probate Code section 1820, the principal’s relatives may petition for the appointment of a conservator of the estate, which can include the authority to terminate or amend the power of attorney. (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1151.)
Family members seeking to override a power of attorney based on a validity challenge must have evidence of the principal’s intent and capacity at the time of execution. (Young v. Horizon (2013) 220 Cal.App.4th 1122, 1130.)
Family members may also seek to override a power of attorney under the Elder Abuse Act if they suspect the principal is being financially abused or subjected to undue influence. California’s Elder Abuse Act is designed to provide heightened protection to a vulnerable population of society from abuse or neglect by creating special remedies. (Welf. & Inst. Code, § 15600 et seq.; Delaney v. Baker (1999) 20 Cal.App.4th 23, 33.) To seek relief under the Act, family members must have a reasonable belief that the agent is subjecting the elder to a deprivation of property rights, or financial abuse such as appropriating, taking, or withholding real or personal property through fraud or undue influence. (Welf. & Inst. Code, § 15610.30.)
To succeed, family members must prove their claim by clear and convincing evidence of the agent’s reckless, oppressive, fraudulent or malicious acts. (see Stewart v. Superior Court (2017) 16 Cal.App.5th 87.) Circumstantial evidence, such as undue influence, may also support the family member’s claim. (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1357.)
Mandated Reporters
Mandated reporters, such as financial institutions and other professions, are lawfully authorized to override a power of attorney in certain circumstances. Specifically, under the Elder Abuse Act, if a mandated reporter suspects an agent of financial abuse, the mandated reporter may stop acting in accordance with the power of attorney’s terms once they have reported the suspected abuse to the relevant law enforcement agencies. (Welf. § Inst. Code, §§ 15630.1, 15630.2.) Here, the power of attorney remains valid and enforceable; therefore, if the writing governs multiple agents, those agents who are not suspected of abuse may continue acting under its authority. (Id.)
What is an Example?
“Shawn” and “Julie” inherited a cabin from their grandparents as 50/50 co-owners. Because Julie works overseas, she gave Shawn a limited power of attorney to manage basic maintenance issues for the cabin. Shawn was not authorized to make major decisions on Julie’s behalf like selling or mortgaging the Property.
Without telling Julie, Shawn signed a lease-to-own agreement with his friend. When Julie discovered the agreement’s existence, she demanded that Shawn cancel the deal. When Shawn refused, Julie revoked the power of attorney, but Shawn’s friend refused to move out of the Property.
Out of options, Julie filed a partition action to force the cabin’s sale, arguing that she had revoked the power of attorney because Shawn exceeded its authority and entered the lease-to-own agreement in bad faith. The court ultimately agreed with Julie, finding that Shawn had abused the power of attorney, and ordered the property to be sold. In the end, Julie recovered damages out of Shawn’s portion of the sale proceeds because of his bad faith conduct.
Conclusion
Overriding a power of attorney is a serious and complicated legal process. Whether you’re revoking a power of attorney as the principal or challenging it as a concerned third party, it’s essential to follow the proper legal procedures. At Underwood Law, our partition attorneys can help you navigate your partition action efficiently and with care. We are here to help.